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About This Blog
Welcome to the Snell & Wilmer real estate litigation blog. Check back here often for useful news and information about current topics involving real estate litigation. We hope that you will find the blog both timely and helpful, and we invite you to join the discussion by posting comments about the articles and contacting the authors with your thoughts about the posts.
Real Estate Litigation Group Members and Blog Contributors
- Bob Henry
- Kevin Parker
- Matt Fischer
- Adam Lang
- Cory Braddock
- Benjamin Reeves
- Erica Stutman
- Patrick Paul
- Rick Erickson
- Ginny Olmstead
- Neal McConomy
- Michael E. Lindsay
- Bob L. Olson
- Nathan G. Kanute
- Sean M. Sherlock
- Lyndsey Torp
- Anthony Carucci
- Luke Mecklenburg
- Jon Frank
- Kevin Walton
- Lauren Munsell
- Lauren Podgorski
- Addy Colton
- John Sarager
- Ian Douglas
- David Rao
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Recent Posts
- When Is A Project Delay Material and Actionable?
- The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
- Can a Receiver Prime and Strip Liens Against Real Property?
- Equine Activity Liability Releases: The Arizona Court of Appeals Finds “Release” of Trail Ride Operator Doesn’t Block Negligence Claim for Participant Riding Injury
- Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?
Topics
- Anti-deficiency Statute
- Bankruptcy
- Commercial Real Estate Industry
- Construction and Development
- Environmental
- Evictions
- Foreclosures
- Guaranty Contracts
- Judgment Liens
- Medical Marijuana
- Real Estate and Bankruptcy
- Real Estate Appraiser Litigation
- Real Estate Broker Litigation
- Real Estate Purchase/Sale Transaction Litigation
- Real Estate Receivers
- Statutes Affecting Real Estate
- Title Insurance
- Uncategorized
- Zoning
When Is A Project Delay Material and Actionable?
By Rick Erickson Welcome to 2022! This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays. The COVID-19 pandemic contributed to suspension of work and closure of construction projects … Continue reading
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Rick Erickson
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Tagged #COVID, breach of contract, construction, construction bonds, construction defect litigation, construction law, construction lending, construction litigation, construction management, contractor, Covid-19, damages, design team, owner, project manager, real estate litigation, residential construction, subcontractor
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Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717
By: Tony Carucci California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing … Continue reading
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acarucci
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Tagged attorneys fees, commercial real estate, construction, contractor, real estate litigation
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California Judicial Council Votes to Rescind Prohibitions on Eviction and Foreclosure Proceedings
By: David Rao and Lyndsey Torp The California Judicial Council’s emergency rules staying evictions and judicial foreclosures are coming to an end. On March 27, 2020, the Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority … Continue reading
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Lyndsey Torp
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Tagged #evictions, emergency rules, foreclosures, Judicial Council, moratorium
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Arizona Governor Ducey’s Executive Order on Residential Eviction Actions
By: Bob Henry As part of the State of Arizona’s response to the current public health crisis, on March 24, 2020, Arizona Governor Ducey issued Executive Order 2020-14, titled “Postponement of Eviction Actions.” A copy of the Executive Order is … Continue reading
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Bob Henry
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Tagged Arizona residential evictions. Executive Order 2020-14
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Airbnb Declares End to Party!
By Patrick Paul As municipalities around the country evaluate changes to their respective codes in an effort to exert greater control over bad actors in the vacation rental market, Airbnb announced on November 2nd that it is banning party houses. … Continue reading
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Patrick J. Paul
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Tagged Airbnb, mansion party, nuisance party, party house
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That’s Common Knowledge! Failure to Designate an Expert Witness in a Professional Negligence Case is Not Fatal Where “Common Knowledge” Exception Applies
By: Lyndsey Torp In reversing summary judgment for defendants, the California Fourth District Court of Appeal recently held that homeowners suing their real estate broker for negligence did not need an expert witness to establish the elements of their causes … Continue reading
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Lyndsey Torp
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Tagged brokers, common knowledge, experts, professional negligence, real estate litigation, summary judgment
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What If Your CCP 998 Offer is Silent on Costs?
By: Tony Carucci In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party … Continue reading
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acarucci
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Tagged commercial real estate, construction, contractor, developer, foreclosure, Guarantor, guaranty, real estate, real estate litigation
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When Does a Contractor Legally Abandon a Construction Project?
By Rick Erickson Lately, we’ve been spending more time as litigators pursuing and defending claims of abandonment against contractors. It has become apparent that abandonment is often misinterpreted in its legal meaning and effect. Here are some thoughts on abandonment … Continue reading
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Rick Erickson
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Tagged abandon, abandonment, breach, breach of contract, claims, construction, construction litigation, contract, contractor, developer, legal excuse, licensing, owner, Registrar of Contractors, subcontractor
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California Supreme Court Hands Victory to Private Property Owners Over Public Use
By: Sean M. Sherlock In 1970 the California Supreme Court held that, under certain circumstances, private property owners impliedly dedicate their property to the public if they permit the public to use it. Gion v. City of Santa Cruz (1970) … Continue reading
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Sean M. Sherlock
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Tagged implied dedication, private property, public use
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Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?
By: Anthony J. Carucci In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a … Continue reading
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acarucci
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Tagged commercial real estate, real estate litigation
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Arizona Supreme Court Holds a Credit Bid at a Trustee’s Sale Should Not be Credited to a Title Insurer Under a Standard Lender’s Title Policy To the Extent the Bid Exceeds the Collateral’s Fair Market Value
By: Richard H. Herold The Arizona Supreme Court recently addressed what impact, if any, a lender’s credit bid at an Arizona trustee’s sale has on an insurer’s liability under Sections 2, 7 and 9 of the standard’s lender’s title policy … Continue reading
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Richard Herold
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Tagged credit bid, Lender's title insurance, trustee's sale
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What Do I Do With This Stuff? Dealing With Abandoned Property After Foreclosure
By: Lyndsey Torp You’ve successfully foreclosed on a commercial building in California, and, thankfully, the borrower moved out after foreclosure or after a period of tenancy. But the borrower left behind all sorts of property – furniture, filing cabinets, records, … Continue reading
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Lyndsey Torp
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Tagged abandon, abandoned property, foreclosure, lost property, personal property, records
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Developer Awarded Cost of Preparing Administrative Record in CEQA Lawsuit
Lawsuits under the California Environmental Quality Act (“CEQA”) typically proceed as petitions for administrative mandamus. This means the petitioner is asking the court to review an agency’s decision and ultimately issue a mandate directing the agency to set aside its … Continue reading
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Sean M. Sherlock
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Tagged administrative record, CEQA, costs of suit
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California’s One-Action Rule May Apply to Federal Lenders
By: Anthony J. Carucci California’s one-action rule provides that “here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years … Continue reading
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acarucci
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Tagged anti-deficiency, commercial real estate, deficiency, foreclosure, foreclosures, Guarantor, guaranty, one-action rule, real estate, real estate litigation, real property
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California Case Deals with Nuisance Lawsuit Intended to Delay Foreclosure
A recent California case provides good precedent for dealing with nuisance lawsuits that are intended to delay valid foreclosures. In Brown v. Deutsche Bank National Trust Company —Cal.Rptr.3d—, 2016 WL 2726229 (May 9, 2016), plaintiff sued defendants to stop them … Continue reading
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Sean M. Sherlock
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Tagged demurrer, foreclosure, judicial notice
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Property Taxes: A Shopping Center May Not Always be a Shopping Center
By: Rick Herold, Craig McPike & Ben Reeves In the world of real property taxes, Valuation + Classification = Assessed Valuation. Sounds simple, right? The County Assessor determines the first factor, valuation (subject to certain guidelines under applicable Arizona law). … Continue reading
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Richard Herold
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Tagged movie theater, real estate, shopping center, tax appeal, valuation, zoning
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Federal Courts to Apply More Protective State Law when Analyzing Validity of Pre-dispute Jury Trial Waivers in Diversity Jurisdiction Cases
By Anthony J. Carucci The Ninth Circuit Court of Appeals recently held that federal courts sitting in diversity jurisdiction must apply the underlying state law to determine the validity of pre-dispute jury trial waivers where the state law is more … Continue reading
Guarantor Waivers Narrowed
By: Lyndsey A. Torp and Sean M. Sherlock A general waiver by a guarantor of “all defenses” does not actually waive “all defenses.” California Bank & Trust v. Del Ponti, — Cal.Rptr.3d —, 2014 WL 6908141 (Cal.App. 4 Dist.). That … Continue reading
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Sean M. Sherlock
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Tagged defense, Guarantor, guaranty, waiver
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California Case Requires Arbitration Despite Lack of Actual Controversy
By: Lyndsey A. Torp and Sean M. Sherlock For parties to litigate a contract dispute in a court of law, the parties’ disagreement must have ripened into an actual controversy presenting more than a mere academic difference of opinion. … Continue reading
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Sean M. Sherlock
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Tagged arbitration, justiciability, ripeness
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Nevada Supreme Court adds New Elements to Constructive Eviction Claims.
By Bob L. Olson Nevada, like many jurisdictions, has recognized the ability of a tenant to vacate property if it becomes unfit for occupancy for the purpose for which it was leased. This is commonly known as a “constructive eviction.” … Continue reading
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Bob L. Olson
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Tagged commercial lease, constructive eviction, evict, eviction, landlord, lease, tenant
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Easements Made Easier: Building Pipelines with the Power of Eminent Domain Under the Natural Gas Act
By: Richard H. Herold Any person or entity seeking to construct a natural gas pipeline and successful in obtaining a certificate of convenience and necessity from the Federal Energy Regulatory Commission may exercise the power of eminent domain to obtain easements across … Continue reading
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Richard Herold
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Tagged condemnation, easements, eminent domain, natural gas act, pipelines
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Guarantors Score Two Victories Before the Nevada Supreme Court.
By: Bob Olson and Nathan Kanute On May 29, 2013, the Nevada Supreme Court issued two decisions that all real estate lenders need to be aware of because they have the potential to eliminate the ability of a lender to … Continue reading
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Bob L. Olson
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Tagged deficiency, foreclosure, Guarantor, one-action rule
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Nevada Supreme Court and District Court Issue Decisions Regarding Nevada’s Limitations on Deficiency Judgments.
By: Bob Olson and Nathan Kanute In 2011 the Nevada Legislature enacted Assembly Bill 273 (“AB 273”) which amended NRS 40.459 by limiting deficiency judgments to the difference between the amount the lender paid to acquire the loan or obligation and … Continue reading
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Bob L. Olson
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Tagged AB 273, anti-deficiency, deficiency, Eagle SPE, foreclosure, Sandpointe
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The Registrar is Changing the Game for Complaints Against Arizona Contractors
By Rick Erickson http://www.swlaw.com/attorneys/rick_erickson Sweeping changes at the Registrar of Contractors have the construction and real estate industries concerned and curious. The Registrar recently received some poor performance reports by the Auditor General and State Ombudsmen. As a result, the … Continue reading
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Rick Erickson
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Tagged administrative remedies, contractor complaints, contractor licensing, enforcement, Registrar of Contractors, regulation of contractors
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A Section 363 Sale Does NOT Transfer Property Free and Clear of an Equitable Servitude
By: Ben Reeves Sales in bankruptcy court under 11 U.S.C. § 363 (called “363 Sales”) are often used to sell property during a bankruptcy case. The 363 Sale process provides an efficient procedure to liquidate estate property and offers several … Continue reading
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Ben Reeves
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Beyond Real Estate: Publicly Traded Homebuilders (And Other Public Companies) Must be Aware of Cybersecurity and Data Breach Disclosure Requirements Applicable to SEC Filings
By: Richard H. Herold Generally speaking, publicly traded homebuilders and other public companies must disclose material information in their SEC filings. “Information is considered material if there is a substantial likelihood that a reasonable investor would consider it important in … Continue reading
Not All Property Acquired Post-Petition is Safe from Creditors
By: Ben Reeves Although property obtained by a debtor after filing for bankruptcy is usually safe from creditors, a recent case from the Ninth Circuit Bankruptcy Appellate Panel allowed a Chapter 7 Trustee to sell real property obtained by the … Continue reading
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Ben Reeves
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Tagged bankruptcy, beneficiary deed, property of the estate, real estate litigation
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ABOR Fences Out a Property Owner’s Quiet Title Action
By: Cory L. Braddock In May of last year, the Arizona Court of Appeals determined that “the statute of limitations does not run against a plaintiff in possession who brings a quiet title action purely to remove a cloud on … Continue reading
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Cory Braddock
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Tagged petition to quiet title, statute of limitation
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Bidding on State Land Trust Leases: Even the Top Revenue-Generating Bids Must be Balanced Against Qualitative “Best Use” Factors Designed to Protect the Land
By: Richard H. Herold The Court of Appeals recently held that that the Commissioner of the State Land Trust Department properly balanced Wildearth Guardians, Inc.’s higher revenue-generating bid against “best use” qualitative factors set forth in the Arizona Administrative Code. … Continue reading
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Richard Herold
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Tagged Grazing Leases, Real Estate Leases
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A.R.S. § 33-814(A) and Bankruptcy Proofs of Claim: To File or Not to File…Conflicting Cases Leave Creditors With No Clear Answer
By: Ben Reeves Under Arizona law, does a secured creditor need to file a deficiency action within 90 days after a trustee’s sale to preserve the unsecured portion of its claim in a bankruptcy case? Or is filing (or amending) … Continue reading
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Ben Reeves
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Tagged A.R.S. § 33-814, bankruptcy, In re Rader, In re Wright, Proof of Claim, trustee's sale, unsecured claim
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